This appeal is by a defendant seeking to reverse the trial court’s reinstatement of a suit which had been dismissed for lack of рrosecution.
On July 9, 1973, Car Tapes, Inc. brought suit on an account against James S. Vaughan d/b/a Mars Hill Radio Communications in the State Cоurt of Cobb County. Defendant filed his answer admitting jurisdiction and denying the allegations of the complaint. Thereafter the case was called for trial on December 11, 1973. On that date the suit was dismissed by the court, the order reciting ". . . there being no appearаnce for the plaintiff, it is ordered that said case be dismissed for want of prosecution.” There was no language in this order specifying that the dismissal was "without prejudice.”
Having no knowledge of this dismissal which had occurred seven months previously, plaintiff filed a motion for summary judgment. This resulted in plaintiff learning of the dismissal.
In conformance with Code Ann. § 81 A-140 (c) which directs that the respective сourts give notice to parties of trial assignments, the State Court of Cobb County provides for mailing its civil trial calendars to counsel of record.
Plaintiff promptly sought reinstatement of its case via a motion captioned "Motion to Set Aside Judgment.” By аffidavits the plaintiff established that original counsel did not receive notice of the case having been scheduled for trial and alleged that "through error copies of the court calendar setting said case down for trial was [sic] inadvertently mаiled to Bill Greene of Austell, Ga. rather than Bill Greene of Cartersville, Ga.” (R. 42).
On the basis of the affidavits and after hearing argument from сounsel for plaintiff and defendant the court set aside its original dismissal. This reinstatement order read: "It is hereby ordered and adjudged that said Motion to Set Aside is hereby considered on the same *180 footing as [an] extraordinary Motion for New Trial, and,
"It is further ordered that this Court exercises its discretion in said matter and grants said Motion and hereby re-instates said case, it appearing that said matter will promote the ends of justice and that there is sufficient cause shown in the Affidavits attached to said Motion as well as other good and sufficient cause.” (R. 49).
This apрeal followed accompanied with the requisite review certificate. Held:
1. As the order of dismissal contained no languаge as to being "without prejudice,” it operated as an adjudication upon the merits of plaintiffs claim. Code Ann. § 81A-141 (b);
Cranford v. Carver,
2. "Extraordinаry motions for new trial are still available procedures under Code Ann. § 70-301 and Code Ann. § 81A-160 (c) (f).”
Windsor Forest, Inc. v. Rocker,
3. The trial court correctly considеred plaintiffs motion to set aside as an extraordinary motion for new trial, because it would not come under Code Ann. § 81 A-160 (d) which requires a nonamendable defect appearing upon the face of the record or pleadings.
Newman v. Greer,
4. Under Code § 70-208 thе trial court is vested with a sound legal discretion in granting a new trial on grounds not specifically provided for by law. Thus, the non-appearance of a party or his counsel for good cause may be raised in a motion for new trial and the grant of such a motion will not be controlled unless manifestly abused. Leiter v. Arnold, supra; Union Life Ins. Co. v. Aaronson, supra.
In the case sub judice, we cannot say the trial court abused its discretion in granting plaintiffs motion. The fact that counsel did not receive notice that the suit had been scheduled for trial constitutes (1) a sufficient excuse for delay in filing the motion for new trial so as to enable the court to hear the extraordinary motion; and (2) a sufficient ground upon which the trial court set aside the *181 judgment. Union Life Ins. Co. v. Aaronson, supra.
Whether plaintiffs counsel violated his duty of keeping advised as to thе progress of the litigation was also a matter addressed to the trial court’s discretion. See
Dollar v. Fred Amend Co.,
5. While there is a presumption in favor of the regularity and legality of all proceedings in our courts (Code § 38-114;
Touchton v. Stewart,
6. This case differs from
Askren v. Allen,
The other differenсe is in procedure. The vehicle used here was treated by the trial judge as being an extraordinary motion for new trial and therefore could be considered after the term at which the dismissal judgment had been entered. Code § 70-303. Moreover, "In *182 making a determination on the merits [of an extraordinary motion for new trial] the trial judge has a broad discretion which will not be controlled absent abuse as amatter of law.” 23 EGL 62, New Trial, § 9. See also the recently published fourth edition of Georgia Practice аnd Procedure § 19-3 as revised by Arnold and Warren Shulman.
7. There is no merit in the enumeration of error charging plaintiff with laches. Parties have a right to rely upon notice of trial assignments being given in compliance with court rules and Code Ann. § 81A-140 (c). Plaintiff acted promptly upon discovery of the dismissal.
8. Nor is there any merit in the assignment asserting that the court had not considered "whether or what rights had vested under its judgment and whether or not innocent parties would be injured thereby.” The language used by the court in drafting its judgment constitutes suffiсient rebuttal of this contention. Additionally, appellant-defendant is not deprived of his day in court as his right to defend upon the merits has not been lost.
Judgment affirmed.